FILED

United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

April 26, 2013

Elisabeth A. Shumaker
Clerk of Court

EDWARD MIZUSAWA,
Petitioner,
v.

No. 12-9562
(Petition for Review)

UNITED STATES DEPARTMENT OF

LABOR,
Respondent,
--------------------------------------------UNITED PARCEL SERVICE,
Intervenor.
ORDER AND JUDGMENT*

Before OBRIEN, McKAY, and BALDOCK, Circuit Judges.

This appeal concerns the whistleblower-protection provisions of the Wendell
H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21),

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

49 U.S.C. 42121. In relevant part, AIR 21 prohibits air carriers from discharging or
discriminating against an employee who provided . . . to the employer or Federal
Government information relating to any violation or alleged violation of any order,
regulation, or standard of the Federal Aviation Administration or any other provision
of Federal law relating to air carrier safety. Id. 42121(a)(1). Petitioner Edward
Mizusawa filed a complaint with the Occupational Safety and Health Administration
(OSHA) asserting that his former employer, the United Parcel Service (UPS),
violated AIR 21 when it terminated his employment. After a hearing, an ALJ found
in favor of UPS, and the Administrative Review Board (ARB) of the United States
Department of Labor affirmed. Our jurisdiction arises under 49 U.S.C.
42121(b)(4)(A), and we deny Mr. Mizusawas petition for review.
I.

BACKGROUND
Mr. Mizusawa began working for UPS in 1984. He was promoted to gateway

manager for the Albuquerque and Tucson airports in 2007, and he also was a trainer
for UPSs Desert Mountain District, which then comprised New Mexico and Arizona.
As gateway manager, Mr. Mizusawa was responsible for all aspects of loading and
unloading UPSs planes, including ensuring that operations at the gateways complied
with all of UPSs policies and procedures and Federal Aviation Administration
regulations.
During his tenure as gateway manager, Mr. Mizusawa reported several safety
concerns to UPS that formed the basis of his AIR 21 claim. In 2007, he informed his
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supervisor, Terry Christopher, about a weight-and-balance error on an outbound

flight. In summer 2008, Mr. Mizusawa complained on several occasions to John
Farley, who became his supervisor earlier that year, that employees responsible for
cargo placement on the planeso-called top-deck designees (TDDs)were not
properly trained, needed drug testing, and were committing safety errors. In August
2008, Mr. Mizusawa complained to Mr. Farley that there was inadequate
hazardous-materials training in the district. In January 2009, Mr. Mizusawa reported
to Mr. Farley that information about hazardous materials on an inbound flight was
not properly conveyed to the flight crew and that there were weight-and-balance
issues with the plane. And finally, on February 17, 2009, the day he was discharged,
Mr. Mizusawa reported to Mr. Farley that there was a weight-and-balance issue on an
inbound flight. In general, Mr. Mizusawa thought that, unlike Mr. Christopher,
Mr. Farley was not properly addressing his concerns.
During Mr. Mizusawas time as gateway manager, the Albuquerque gateway
failed UPSs National Air Audit in 2007 and 2008. District Manager Craig Wiltz and
Operations Manager Bill Conrad met with Mr. Mizusawa after the 2007 audit and
advised him that he was responsible for the shortcomings of his subordinate
employees. Mr. Wiltz testified that Mr. Mizusawa didnt really seem to be taking
responsibility for the things that were identified in the audit at the time. R., Vol. III
at 332. Mr. Mizusawa prepared a written statement that he would resign if the
Albuquerque gateway did not pass the next audit. In fact, the gateway did not pass
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the next audit, which occurred in July 2008, and Mr. Mizusawa did not resign.
Mr. Farley testified that during a roundtable discussion with the auditors,
Mr. Mizusawa acted unprofessionally toward the auditors and questioned their
qualifications. Mr. Mizusawa claimed that he spoke up about the TDDs during a
conference call the next day with the auditors, Mr. Wiltz, and other UPS managers,
and Mr. Farley later told [him] to keep [his] mouth shut, and [they] would fix [the
TDD matter] within the district. Id., Vol. II at 46. Willing to give him another
chance, and concerned that he was not taking responsibility for the failed audits, UPS
placed Mr. Mizusawa on a performance improvement plan. The Albuquerque
gateway then passed an audit in January 2009. It also was ranked number one in its
national group for 2008, and on January 31, 2009, Mr. Mizusawa received a very
high rating on an individual evaluation.
Meanwhile, in October 2008, one of Mr. Mizusawas part-time supervisors,
Zak Abad, asked for permission to shoot a video at the Albuquerque gateway for a
school project. UPS has a video policy, which provides that the use of all recording
devices in any UPS facility for anything other than authorized business purposes is
prohibited, R., Vol. VII, Tab 36, at 11. After a very brief exchange, and without
discussing the request with anyone further up the UPS managerial chain,
Mr. Mizusawa gave Mr. Abad permission, instructing him to follow all UPS
procedures and certifications and ensure that all non-employees were properly
badged. In late November, Mr. Abad brought in a number of non-UPS employees
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and shot two scenes. In one scene, an actor portrayed an escaped prisoner being
placed in a UPS shipping container, which UPS employees then set on a UPS tug and
loaded onto a UPS plane. In the other scene, the actor was seen running out of the
belly of the plane on a loading belt.
The Abad video came to UPSs attention in February 2009 when the company
was investigating a different video, also shot at the Albuquerque gateway by four
different UPS employees, that had been posted on YouTube. After investigating the
Abad video and discussing the issue with two human-resource managers, Mr. Wiltz
decided to terminate Mr. Mizusawas employment. Mr. Wiltz asked Mr. Farley to
convey the news to Mr. Mizusawa, which he did.
Mr. Wiltz testified that the primary reason for his decision was that
Mr. Mizusawa gave the authority for a part-time supervisor and non-employees to
come onto our property, use our equipment in an un-work related shooting of a video,
and thats against our company policy. Id., Vol. III at 330.1 Mr. Wiltz also
identified a contributing factorthat Mr. Mizusawa had demonstrated a pattern of
poor decisions . . . going back to [the 2007 and 2008] audits, id., and the company
had not been able to correct his decision-making, id. at 345. Mr. Wiltz testified
that Mr. Farley had no input into his decision and that his decision was not based on
Mr. Mizusawas reports of safety concerns.
1

UPS also has a policy prohibiting the use of UPS equipment for personal
benefit.
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The ARB affirmed the ALJs determination, which was highly fact- and
credibility-intensive, that Mr. Mizusawa had not established that any of his reports of
safety issues was a contributing factor in UPSs decision to terminate his
employment. This petition for review followed.
II.

DISCUSSION
In an AIR 21 case, we review the ARBs final decision and order under the

Administrative Procedure Act, 5 U.S.C. 701-706. See 49 U.S.C.

42121(b)(4)(A). In relevant part, the APA directs that we may overturn the ARBs
decision only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law. 5 U.S.C. 706(2)(A). We may set aside factual findings only
if they are unsupported by substantial evidence. 5 U.S.C. 706(2)(E).
Substantial evidence is such relevant evidence a reasonable person would deem
adequate to support the ultimate conclusion. Anderson v. U.S. Dept of Labor,
422 F.3d 1155, 1173 (10th Cir. 2005) (internal quotation marks omitted). The
substantial-evidence standard does not allow a court to displace the agencys choice
between two fairly conflicting views, even though the court would justifiably have
made a different choice had the matter been before it de novo. Trimmer v. U.S.
Dept of Labor, 174 F.3d 1098, 1102 (10th Cir. 1999) (internal quotation marks
omitted). Credibility findings are entitled to great deference. Id.
Under AIR 21, a complainant has the initial burden to demonstrate by a
preponderance of the evidence that his protected activity was a contributing factor
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in the personnel decision. See 49 U.S.C. 42121(b)(2)(B)(iii); see also Hoffman v.

Solis, 636 F.3d 262, 267-68 (6th Cir. 2011) (discussing AIR 21s statutory
requirements and burdens). If a complainant does so, the burden shifts to the
employer to demonstrate[], by clear and convincing evidence, that [it] would have
taken the same unfavorable personnel action in the absence of [the protected
activity.] 49 U.S.C. 42121(b)(2)(B)(iv); see also Hoffman, 636 F.3d at 268.
We conclude that substantial evidence, as detailed above and explained below,
supports the ARBs determination, and we see nothing that suggests the ARBs
decision was arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law. 5 U.S.C. 706(2)(A), (E). To hold otherwise would
require us to exceed the bounds of our limited review under the APA.
Mr. Mizusawa raises a number of arguments, none of which we find
persuasive. He contends that UPSs reasons for firing him changed over time and
that this suggests pretext. But the record shows that UPSs reasons were consistent.
First, Mr. Mizusawa claims that UPS did not provide a contemporaneous reason, but
Mr. Farley testified that he told Mr. Mizusawa he was being discharged because of
the inappropriate use of company property and equipment in an unauthorized time,
or something to that effect. R., Vol. II at 177. And District Security Manager
Chuck Martinez, who was present when Mr. Farley conveyed the news to
Mr. Mizusawa, testified that Mr. Mizusawa was told he was being discharged for
violating UPS policies, for granting unauthorized access to a gateway, and the
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unauthorized use of UPS equipment. Id., Vol. III at 322. Like the ALJ, the ARB
did not resolve the parties conflict on this point, but the dispute is immaterial. If
Mr. Farley did not state a reason, there is no inconsistency with UPSs later-stated
reasons. And if he did state the reasons he and Mr. Martinez identified at the ALJ
hearing, it was consistent with the position UPS took in defending Mr. Mizusawas
initial OSHA complaint (which was that UPS fired him for violating its policies
regarding the use of its facilities) and with Mr. Wiltzs testimony.
Second, we disagree with Mr. Mizusawa that there were any inconsistences
among UPSs OSHA position, Mr. Wiltzs testimony, and the deposition testimony
of UPSs corporate representative, Harvey Hill, who was UPSs Desert Mountain
Division Employee Relations Manager. Mr. Mizusawa characterizes Mr. Hills
deposition testimony as stating that inappropriate use of UPS facilities was not a
reason for the decision, but the record does not support this characterization.
Mr. Hill was asked whether it was accurate that UPS fired Mr. Mizusawa for
inappropriate use of facilities and equipment by a subordinate. Claimant granted
permission. Id., Vol. II at 162 (internal quotation marks omitted). Mr. Hill
responded, No, Ive never seen that code, claimant granted permission. Ive never
seen that before. Id. at 163 (internal quotation marks omitted). Mr. Hill was then
asked if there were other reasons that Mr. Mizusawa was fired[.] Id. (internal
quotation marks omitted). Mr. Hill asked for clarification whether they were talking
about the code that we put in or reasons that may have led up to the termination. Id.
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(internal quotation marks omitted). Mr. Mizusawas attorney replied that he was
looking for the reasons that led up to the termination. Id. (internal quotation marks
omitted). Mr. Hill then said there were other factors, id. (internal quotation marks
omitted), which we read to mean other than the inappropriate use of UPS facilities
and equipment. Mr. Hill identified those other factors as Mr. Mizusawas
behavior as a manager, his unwillingness to correct some of the problems that his
boss talked to him about, his overall approach to the process of the improvement
plan, uncooperativeness with his boss. Id. (internal quotation marks omitted).
Viewing the entirety of the exchange rather than the snippet Mr. Mizusawa isolates in
his brief, it is clear that Mr. Hill did not say that inappropriate use of UPS facilities
was not a reason for the termination decision. In sum, the record does not support
that there were any plausible signs of pretext in the various iterations of the reasons
for UPSs termination decision.
Mr. Mizusawa also claims that Mr. Farley was out to get him, Petrs
Opening Br. at 6, but there is no evidence that Mr. Farley was involved in the
termination decision. Mr. Mizusawa further contends that other employees who
violated UPSs video policy were not fired, indicating that UPS did not follow its
own zero-tolerance policy with regard to video recordings. But the record does not
show that the other employees were similarly situated; only one of the purported
comparators, Phil Stevens, was a supervisor who gave permission to an employee to
film a video using UPS equipment and personnel. However, Mr. Stevens gave
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permission to Mr. Abad only after learning that Mr. Mizusawa, who was his
supervisor, had already given permission to Mr. Abad. Furthermore, three of the
employees connected with the YouTube video resigned. UPS fired the other
employee, but he was reinstated after filing a grievance. Thus, the record does not
support Mr. Mizusawas claim of disparate treatment or that UPS failed to follow its
own policy.
Mr. Mizusawa also appears to question the existence and substance of UPSs
video policy, but we agree with the ARB: Substantial evidence supports the ALJs
finding that credible testimony established that such a policy was in place and that
Mr. Mizusawa should have been familiar with it. The ALJ credited Mr. Hills
testimony that Mr. Mizusawa should have been aware of the video policy because he
had taken two training sessions in 2007 that would have covered the policy. The ALJ
also credited the testimony of Mr. Martinez, who interviewed Mr. Mizusawa the day
he was terminated. Mr. Martinez testified that, during the interview, Mr. Mizusawa
indicated that when presented with a request to deviate from UPSs video policy, an
employee should go through their immediate supervisor, who, in turn, would go
through their manager, through the division manager, and in essence really just
follow our protocol in terms of a chain of command in terms of notification
processes. Id., Vol. III at 316. Mr. Mizusawa further claims that he had given
permission on other occasions for video shoots and was not disciplined, but there is
no evidence UPS was aware of any prior episodes.
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Mr. Mizusawa also points to the temporal proximity between his reports of
safety violations and his termination. The ARB did not expressly discuss temporal
proximity, but the ALJ found that temporal proximity alone was insufficient to show
retaliation because intervening events, namely the two failed audits and
Mr. Mizusawas authorization of the Abad video, could have independently caused
[Mr. Mizusawa] to lose his job. Id., Vol. I, Tab 23, at 15; see also id., at 13 (relying
on Barber v. Planet Airways, Inc., ARB Case No. 04-056, 2006 WL 1151953, at *5
(ARB Apr. 28, 2006), for the proposition that inferring a causal relationship
between the protected activity and the adverse action is not logical when the two are
separated by an intervening event that independently could have caused the adverse
action). We agree that temporal proximity in this case is insufficient to show a
causal connection between Mr. Mizusawas safety reports and his termination.
Finally, Mr. Mizusawa argues that UPS did not support its same-decision
defense with clear and convincing evidence. But UPS was not required to establish
that defense because Mr. Mizusawa did not meet his initial burden to demonstrate
that his protected activity was a contributing factor in the adverse personnel decision.
See 49 U.S.C. 42121(b)(2)(B)(iii), (iv); see also Hoffman, 636 F.3d at 267-68.

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III.

CONCLUSION
The petition for review is denied.

Entered for the Court

Monroe G. McKay
Circuit Judge

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